Why Justice Scalia Should Be a Constitutional Comparativist ... Sometimes
Gray, David C., Stanford Law Review
INTRODUCTION I. THE LIVING ROOTS OF CONSTITUTIONAL COMPARATIVlSM II. JUSTICE SCALIA'S OPPOSITION TO CONSTITUTIONAL COMPARATIVlSM III. AN ORIGINALIST ARGUMENT FOR CONSTITUTIONAL COMPARATIVISM IV. ORIGINALIST AS PRAGMATIST? V. HOW TO BE AN ORIGINAL CONSTITUTIONAL COMPARATIVIST CONCLUSION: FUTURE CHALLENGES FOR A UNIFIED THEORY OF CONSTITUTIONAL COMPARATIVISM
Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.
--Antonin Scalia, Associate Justice of the Supreme Court ([dagger])
The proper role of international law in domestic constitutional adjudication is a hot issue in legal circles and beyond, particularly in light of attacks on an "activist" judiciary, presently the fad among pundits, politicians, and pulpitarians. While the contest has been simmering for years in Congress, (1) on the Court, (2) and among academics, (3) the top blew off the pot during the 2003 and 2004 Supreme Court terms "[w]hen [Justice] Kennedy, who's hardly a liberal, started citing these international sources ... [and] the subject exploded in the broader political world." (4)
It is no surprise to his fans or critics that Justice Scalia has been at the front of this contest. In written decisions, (5) public speeches, (6) and an unprecedented debate on the topic with Justice Breyer, (7) Justice Scalia has drummed a regular beat against the use of contemporary foreign law materials when interpreting the Constitution. (8) This Article provides a critical exegesis of his position and argues that, in a narrow set of constitutional cases, including those implicating the Eighth Amendment prohibition against cruel and unusual punishment, Justice Scalia, as an originalist, ought to refer to contemporary foreign sources.
The first Part of this Article outlines positions adopted by members of the Court in favor of constitutional comparativism. With this frame drawn, the second Part elaborates Justice Scalia's commitment to originalism as a theory of constitutional interpretation and explains his opposition to the use of contemporary foreign law materials when interpreting the Constitution. The second Part also responds to some of Justice Scalia's more prominent critics, arguing that their attacks misunderstand Justice Scalia's views, and therefore fail to provide argumentative clash. The third Part adopts a novel approach, taking a position within originalism and arguing that, on pain of contradiction, originalists must take into account contemporary views, foreign and domestic, in a limited set of cases where the meaning of the Constitution's universalist language is at stake. The fourth Part returns to the task of sympathetic exegesis, arguing that Justice Scalia's steadfast refusal to consider foreign sources is a practical response to an apparently insurmountable epistemic challenge. The final Part sketches a solution to this epistemic challenge and outlines a role for contemporary international law in originalist constitutional interpretation. (9)
I. THE "LIVING" ROOTS OF CONSTITUTIONAL COMPARATIVISM
The best place to start is with a visit to the opposing camp. At least four present Justices of the Supreme Court, Stevens, Kennedy, Ginsburg, and Breyer, and the recently retired Justice O'Connor, are proponents of what David Fontana might call "positive," "ahistorical comparativism." (10) Their views spring from the premise that interpreting the Constitution is not merely an exercise in painstaking historical investigation, but requires reading constitutional language with the benefit of intervening events and experiences. In a recent speech before the American Society of International Law, Justice Ginsburg stated the point thus:
The notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a close kinship to the view of the U.S. Constitution as a document essentially frozen in time as of the date of its ratification. I am not a partisan of that view. U.S. jurists honor the framers' intent "to create a more perfect Union," I believe, if they read our Constitution as belonging to a global twenty-first century, not as fixed forever by eighteenth-century understandings." (11)
The contest that Justice Ginsburg identifies is at the core of debates between originalists and advocates of a "living Constitution." (12)
The contemporary stink over the use of foreign sources in constitutional adjudication is most directly attributable to Justice Kennedy and his opinions in Lawrence v. Texas (13) and Roper v. Simmons. (14) While Justice Kennedy has not separately published his views on the proper place of foreign materials in domestic constitutional jurisprudence, these two decisions paint a vivid picture of the Constitution as containing objective normative standards that cannot be understood without reference to contemporary events and circumstances. Assuming that this is his view, it follows that Justice Kennedy is committed to considering foreign sources when doing so enhances the capacity of the Court to determine the scope of objective constitutional standards or to put into perspective normative commitments held by our forebears, ancient and recent.
While neither Lawrence nor Roper expresses any concern for what foreign nations may think of U.S. courts, Justice Kennedy has